The Atlas Ceiling & Partitions Company Limited -v- Crowngate Estates (Cheltenham) Limited
The sub-contract was not entered into before the date by which construction contracts had to be entered into so that the statutory adjudication provisions of the Housing Grants, Construction and Regeneration Act 1996 applied to them but instead came into existence about a year later
18 February, 2000
The sub-contractor issued court proceedings to enforce the adjudicator's decision in its favour and applied for summary judgement. The contractor contended that the sub-contract was entered into before the relevant date (1 May 1998) under section 104(6) of the Housing Grants, Construction and Regeneration Act 1996 which provided that statutory adjudication under the Act only applied to construction contracts entered into after that date. The summary judgment application was therefore turned into the hearing of the issue as to the adjudicator's jurisdiction based on the contractor's contention. Judge Thornton held that notwithstanding that the parties signed a DOM/1 form of sub-contract, the sub-contract was not entered into (as was contended for by the contractor) before the date by which construction contracts had to be entered into so that the statutory adjudication provisions of the Act applied to them, ie on the date of the signing of that form, but instead came into existence about a year later (as was contended for by the sub-contractor) with the result that the sub-contract was subject to adjudication under the Act. This was because by the date that the DOM/1 form was signed by the sub-contractor, it had formed the view that there was no possibility of entering into a sub-contract incorporating DOM/1 insofar as that form of sub-contract did not provide for bills of quantities, if a sub-contract had been entered into, the shortfall in work in the bill of quantities provided by the contractor would have been given contractual effect, the doors and windows specification had not been finalised and the appropriate guarantees had not even been agreed. The sub-contractor's director's evidence in relation to the signing of the DOM/1 form should be accepted and was that it was agreed that the contract would not take effect until the various outstanding matters, including in particular the question of the bills of quantities, had been finalised and agreed, this arrangement was agreed to by the contractor and in the light of these matters the DOM/1 form was signed and attested but was not dated. Advice Note The date of signing of a contract does not automatically mean that the contract is entered into on that date. The vital factor is the parties? intention as to when the contract should come into existence.